article

07.14.09

Yes, It's All About Race

As conservatives call Sonia Sotomayor an “activist” judge Tuesday, you should remember one thing, Matthew Yglesias writes. Conservatives love activist judges. They just prefer when they advance the interests of white people.

As conservatives call Sonia Sotomayor an “activist” judge today, you should remember one thing, Matthew Yglesias writes. Conservatives love activist judges. They just prefer when they advance the interests of white people.

Conservative responses to Judge Sonia Sotomayor's nomination to fill a vacancy on the Supreme Court have, naturally enough, involved invocations of the dread specter of "judicial activism," the allegedly horrifying practice through which liberal judges go fishing through the language of the Constitution to find reasons to strike down democratically enacted legislation. The right has also made a great deal of hay out of Sonia Sotomayor's decision in the case of
Ricci v. DeStefano. The decision to highlight this case is not surprising, as it puts Sotomayor on the side of unpopular affirmative-action programs and with a set of facts that makes the liberal side look especially bad. To make a long story short, Frank Ricci was a New Haven firefighter with a sympathetic life story who was in line for a promotion. Then the test results got thrown out on the grounds that no minority firefighters did well enough to qualify for a promotion.

The conservative movement in the United States has long stood for the proposition that white people are being treated unfairly.

As a test case for opponents of affirmative action, this is a pretty sweet deal. It works especially well because though a promotion in the New Haven Fire Department was highly desirable to Ricci and his colleagues, it's not exactly a pass into the American elite. Firefighting is a quintessential working class line of enterprise, so it's hard to see Ricci and other white firefighters as representing some immensely privileged overclass that ought to pay the penalty for America's past racial sins. It's a good case for the right, in other words, except for one thing: their passionate embrace of Ricci's cause on the one hand completely undermines their argument about judicial activism on the other.

After all, Sonia Sotomayor was not a member of the New Haven City Council. She wasn't the mayor. She doesn't sit in the Connecticut state legislature. She has nothing to do with setting fire-department policies. She was an appeals court judge who happened to sit on the circuit that covers Connecticut. What she was being asked to do was toss out a decision reached by the appropriate elected officials in the name of a more abstract concept of justice. And not just any concept, but specifically a concept that was at odds with the way courts had traditionally construed the relevant portions of the Civil Rights Act. She declined to do so, and rightly so; it's not the role of appeals court judges to throw out precedents.

The U.S. Supreme Court, by a 5-4 margin, chose to do otherwise, deeming New Haven's actions an intolerable act of racial discrimination. And there should be little surprise that they did. The conservative movement in the United States has long stood for the proposition that white people are being treated unfairly. Sen. Barry Goldwater opposed the Civil Rights Act and carried the Deep South. Ronald Reagan made a name for himself opposing fair-housing laws. The George W. Bush administration dedicated the time of the staff of the Justice Department's Civil Rights Division to attacking college-affirmative-action policies. Justices Kennedy, Roberts, Alito, Thomas, and Scalia overruled Sotomayor's decision in
Ricci. And earlier Tuesday, Sen. Jeff Sessions, himself rejected for a judicial post in the 1980s on the grounds that he's a racist, was berating Sotomayor for her alleged belief that Hispanic judges can use life experience to reach superior decisions to white ones.

Conservative commentators like George Will
like to portray their outrage over the Ricci case as a principled stance in favor of racial blindness, writing of "the predictable price of failing to simply insist that government cannot take cognizance of race." But looking at the record quickly reveals that Will, like most conservatives, rarely if ever bemoans instances of racial discrimination against nonwhites. They oppose racial classifications for the specific reason that they fear such classifications are being used to disadvantage white people, and seek to advance this pro-white agenda through, among other things, activist judging.

But race is hardly the only principle on which conservative jurists deploy constitutional reasoning to overturn democratic majorities. In last year's
District of Columbia v. Heller, a conservative majority overruled Washington, D.C.'s democratically enacted restrictions on handgun possession. Earlier in 1995's
U.S. v. Lopez, the court overturned aspects of congress' Gun Free Schools Act. In the
Morrison case, portions of the Violence Against Women Act were struck down. In
Eastern Enterprises v. Apfel, the court struck down the Coal Industry Retiree Health Benefit Act on the grounds that Congress' efforts to ensure secure retirement for former coal industry employees violated the fifth amendment rights of coal companies.

Liberals have, of course, played a similar game when they have had the judicial votes to do so, striking down democratically enacted laws against sodomy, against school segregation, against contraceptive bans, against miscegenation laws, and against abortion criminalization.

This judging is all, in some sense, "activist" and all involves overturning the will of democratically elected legislators. The difference is not in the means but the ends. Liberal cases seek to advance the rights of racial minorities, women, gays, etc., Conservative jurists have sought to advance the interests of white people, corporations, gun owners, and perpetrators of domestic violence. As a theoretical matter, there seems to be a clearer case for the use of judicial review to protect the interests of traditionally disenfranchised groups who may not be able to use the political process to defend their legitimate claims. (Admittedly, wife-beaters may face this same problem). But if conservatives don't see it that way, they're certainly entitled to articulate their alternative vision of a judiciary that heroically wields the 14th Amendment to protect America's overburdened corporate executives from the will of the people.

What they shouldn't be entitled to do is pretend that this vision is also a vision of pliant judicial deference to elected officials. After all, look at what happens when presented with a judge who declined to get activist against a law they didn't like.